FOIPP Act Policy and Procedures Manual

 

Section 8 - Contents of Response
Last updated: August 18, 2008
SUMMARY

Section 8 of the Act provides the minimum requirements for the contents of the response to a formal request under the Act, once the public body has determined whether the applicant is entitled to access.  The final response is the last in the series of steps involved in responding to a formal request.  The final response informs the applicant of the public body's decision to either grant or deny access to all or part of the information, and that he/she may ask the Information and Privacy Commissioner (Commissioner) to review the public body's decision.  In addition, the final response provides any additional information that may be helpful to the applicant.

SECTION REFERENCE

Section 8 of the Freedom of Information and Protection of Privacy Act

8 (1) In a response under section 7, the head of the public body must tell the applicant

(a) whether or not the applicant is entitled to access to the record or to part of the record,

(b) if the applicant is entitled to access, where, when and how access will be given, and

(c) if access to the record or to part of the record is refused,

(i) the reasons for the refusal and the provision of the Act on which the refusal is based,

(ii) the name, title, business address and business telephone number of an officer or employee of the public body who can answer the applicant’s questions about the refusal, and

(iii) that the applicant may ask for a review under section 53 or 63.

(2) Despite subsection (1)(c)(i), the head of a public body may refuse in a response to confirm or deny the existence of

(a) a record containing information described in section 15 (information harmful to law enforcement) or

(b) a record containing personal information of a third party if disclosure of existence of the information would be an unreasonable invasion of the party’s personal privacy.

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POLICY

  1. The head of a public body must advise the applicant in writing whether or not he/she is entitled access to the entire requested record or part of the record in accordance with the requirements of this section.

    Interpretation Note 1

  2. If the public body is giving access, it tells the applicant where, when and how access is to be given.

    Interpretation Note 2

  3. If the public body is not giving access, it tells the applicant why not, informs the applicant of the right to ask the Commissioner for a review of the decision and gives the applicant the name, business address and business telephone number of an officer or employee in the public body who can answer the applicant’s questions.

    Interpretation Note 3

  4. The public body may refuse to confirm or deny the existence of a record in the circumstances described in section 8(2).

    Interpretation Note 4

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PROCEDURE

The following letters provide guidance in drafting the various types of final responses to formal requests under the Act.

  1. Letter 8-1: Response to Access Request - Granting Full Access

  2. Letter 8-2: Response to Access Request - Denial of Part of Request

  3. Letter 8-3: Response to Access Request - Denial of Request 

  4. Letter 8-4: Response to Access Request - Refusal to Confirm or Deny Existence of a Record

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INTERPRETATION

Interpretation Note 1 (Section 8(1)(a)):

Access to a requested record or part of the record will be provided in the following circumstances:

  • the record is within the scope of the Act; and
  • the information does not fall within a mandatory or discretionary exception; or
  • the information falls within a discretionary exception and the head of the public body exercises discretion in favour of releasing the information.

Example

  • If information has been severed from the record, the public body provides an explanation of the severance to the applicant (unless this explanation would in itself reveal excepted information, as may be the case with some law enforcement information).

Interpretation Note 2 (Section 8(1)(b)):

Example

  • An applicant has asked to examine a record that cannot be reasonably reproduced. Under section 9(3), the public body must provide the applicant with an opportunity to examine the records; therefore, the response must include the time and place at which the applicant may examine the requested information.

Interpretation Note 3 (Section 8(1)(c)):

Reason for refusal - information is subject to an exception:

If the applicant is refused access to all or part of a record, the public body must specify all the exceptions under which information is being withheld, including where more than one exception may apply to the same information. In addition, the public body must also reveal the reasons for non-disclosure of the requested information, if the reasons can be disclosed without revealing the substance of the withheld information.  The reasons for refusal should, if possible, be more than a mere repetition of the section used to refuse to disclose the information, and be as complete as possible. The level of detail required will depend on the circumstances of each case, including the nature and number of the records involved. See Order 323-1999, 00-42 and 00-51.

Example

  • If the public body is withholding advice to the minister in accordance with section 13, the public body could provide a response along the lines of: Information in the record you requested has been withheld in accordance with section 13. Section 13 protects information that would reveal advice or recommendations developed by or for a public body or a minister.  The information in the record is advice to the Minister developed by staff in one the ministry’s program areas regarding the implementation of a proposed project.  Such information is protected by section 13.

The applicant is also provided with the name, title, business address and business phone number of the Director/Manager of Information and Privacy (DMIP) who will be able to answer any questions the applicant may have.

In addition, the response must inform the applicant that he/she has a right to request a review of the decision under section 52 or 62 and the process for requesting a review under section 53 or 63.

Reason for refusal - Record does not exist:

A public body may receive requests for records that do not exist. In such cases, the public body consults with the applicant to determine if the request may be for other information that does exist. If not, the response letter informs the applicant of the steps that the public body has taken to determine that the requested records do not exist.

In some cases, the request may relate to a record that has been destroyed prior to the receipt of the request in accordance with an approved records retention and disposition schedule. Where this is the case, the public body informs the applicant when and under what authority the record was destroyed. If the public body does not have these details, but knows that the record was destroyed, as may be the case with requests for older records, it conveys this information to the applicant.

See Letter 8-3: Response to Access Request - Denial of Request.

Interpretation Note 4 (Section 8(2)):

May refuse in a response to confirm or deny the existence of a record

In some circumstances, the mere knowledge that a record exists will cause harm to law enforcement or will unreasonably invade the personal privacy of a third party. Therefore, the head of a public body may refuse to confirm or deny the existence of such a record, as outlined in section 8(2)(a) and (b).

Under section 8(2)(a), if a record contains information described in section 15, the head of the public body is permitted to refuse to confirm or deny its existence.

Example

  • Disclosure of records that would harm the effectiveness of investigative techniques and procedures currently used, or likely to be used, in law enforcement.

Under section 8(2)(b), if a record contains personal information of a third party, and if the disclosure of the existence of the information would result in an unreasonable invasion of a third party’s privacy in accordance with section 22, the head may refuse to confirm or deny the existence of the record.

Example

  • A journalist requests information on psychiatric treatment given to a prominent politician. Such information is personal to the politician and the head of the health care body could decide to deny access to the politician’s health information. Such a denial would, however, reveal the fact that the politician had received psychiatric treatment. This revelation would in itself constitute an unreasonable invasion of personal privacy. The head of the health care body therefore decides neither to confirm nor deny the existence of the politician’s psychiatric files.
If an applicant asks the Commissioner to review a refusal to confirm or deny the existence of a record, the public body is expected to be able to provide evidence as to why section 8(2) is applicable.

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SECTIONAL INDEX OF COMMISSIONER'S ORDERS

For orders organized by the Act's section numbers, Click here.

For a summary of the Commissioner's orders and policy interpretation of key points, Click here.

APPENDICES

LETTERS:
 8-1:  Response to Access Request - Granting Full Access
8-2:  Response to Access Request - Denial of Part of Request
8-3:  Response to Access Request - Denial of Request
8-4:  Response to Access Request - Refusal to Confirm or Deny Existence of a Record